Shared & Halved – IHL series: Employment issues

As part of our series of webinars to support in-house lawyers during the current pandemic, on 17 June we hosted a webinar looking at the latest developments with the furlough scheme and some of the key employment issues arising out of re-opening workplaces.

Introduction

The IHL series of our COVID-19 webinar programme covers bite-size topics designed for a half hour coffee break and focuses on practical tips for in-house lawyers.

This session focused on employment issues. The key takeaway points are set out below:

Flexible Furlough

• From 1 July 2020, employers will be able to bring workers back to work on a part time basis if appropriate whilst still claiming under the Job Retention Scheme (Scheme) for any of the worker’s normal hours which are not worked.
• Workers will be able to work as much or as little as the business requires.
• Employers will be responsible for paying workers’ wages in full while they are in work (including paying the tax and employer NICs due on those amounts).
• Importantly, claims under the Scheme from July onwards will be restricted to those employers currently using the Scheme and to those workers who have already been furloughed for 3 consecutive weeks anytime between 1 March and 30 June.
• The exception to this is that any individuals returning from statutory parental leave after 10 June 2020 can still be put on furlough leave for the first time as long as their employer has previously submitted a claim under the Scheme in respect of at least one other worker.
• For claims starting on or after 1 July, the maximum number of workers an employer can claim for cannot be higher than the maximum number they have claimed for in a previous claim period.
• If a period of furlough leave started in June, it must last for a minimum of 3 weeks before any flexible furlough arrangement can be entered into.
• Employers must agree the terms on which a worker will return to work either directly with the worker or via a collective agreement with the trade union. The agreement must be set out in writing and should be kept for 6 years in line with other records which need to be retained.
• Employers must claim for a minimum of a week and will need to submit data on the usual hours an employee would be expected to work in a claim period, the actual hours worked and the hours not worked when on furlough. HMRC guidance sets out different calculation methods depending on whether the individual has fixed or variable hours. The cap on the grant will be proportional to the hours not worked.
• Employers have until 31 July to make claims in respect of the period up to 30 June. From 1 July, claim periods will no longer be able to overlap months.
• The amount of the grant available under the Scheme will be tapered as follows:
  • From 1 August the grant will still cover up to 80% of wages up to a cap of £2,500 per month but employers will have to cover the employer NICs and pension contributions on the furlough pay;
  • From 1 September the grant will cover up to 70% of wages up to a cap of £2,187.50 per month but employers will have to cover the additional 10% of wages (to ensure the employee still receives 80%) as well as the employer NICs and pension contributions on the furlough pay;
  • From 1 October the grant will cover up to 60% of wages up to a cap of £1,875 per month with employers having to cover the additional 20% of wages as well as the employer NICs and pension contributions on the furlough pay.
• The Scheme will close on 31 October.

Re-opening workplaces

• Complete a risk assessment detailing the risk profile within the workplace in respect of COVID-19.
• Engage with employees and their representatives regarding the significant findings of the risk assessment and the steps which are being put in place to minimise the risks identified.
• Consider the data protection implications of any health data which is collated as part of any safety measures put in place.
• Put a contingency plan in place in case several employees are requested to self-isolate under the new NHS Test and Trace service.
• Deal with any employees who refuse to return to work sensitively, carefully considering the reasons for their refusal before deciding on what action is most appropriate to take in the circumstances.